JADUMANI BISWAL Vs. NARAYAN CHANDRA BISWAL

JUDGEMENT

(1.) These two appeals have been heard together and will be disposed of by this common judgment.

(2.) First Appeal No. 29 of 1970 and First Appeal No. 42 of 1970 have been preferred by defendant No. 1 and the plaintiff respectively against a preliminary decree for partition.

(3.) During the pendency of the appeals, the suit lands came under consolidation operation by virtue of a notification issued under Section 3(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act'). The suit lands cover both agricultural and non-agricultural lands. The learned counsel appearing on behalf of the appellant in First Appeal No. 29 of 1970 contended that notification under Section 3(1) of the Act having been issued in respect of the village where the suit lands are situate, the suit has to abate as a whole. The learned counsel appearing on behalf of the appellants in First Appeal No. 42 of 1970 on the other hand contended that the suit so far as it relates to homestead lands cannot abate. Reliance is placed on two single Bench decisions of this Court reported in (1976) 42 Cut LT 400 (Abhimanyu Panda v. Digambar Beura) and, AIR 1980 Orissa 183 (Musa Jena v. Panu Charan Naik) where both the learned Judges took the view that the homestead land does not come within the purview of the Act and on the publication of the notification under Section 3(1) of the Act the suit in respect of such land cannot abate.